Hostname: page-component-78c5997874-ndw9j Total loading time: 0 Render date: 2024-11-19T17:35:59.152Z Has data issue: false hasContentIssue false
  • English
  • Français

Which supranational sovereignty? Criminal and socioeconomic justice compared

Published online by Cambridge University Press:  17 October 2011

ELISA ORRÙ  and
MIRIAM RONZONI
Get access Rights & Permissions [Opens in a new window]

Abstract

The idea that transnational dynamics challenge the regulatory capacity of the state has hardly ever received as much attention as in contemporary debates. Different voices denounce the crisis of the state and advocate the establishment of supranational institutions with legally coercive power. It is tempting to jump to the conclusion that these voices are concerned with the same cluster of problems. We think that one should resist this temptation. Firstly, not all the problems pointed out by the advocates of supranational sovereignty are of the same kind and structure. Some concern the need to limit the power of states, whereas others address the almost opposite necessity to support and strengthen their problem-solving capacity through forms of international regulation. Secondly, the corresponding solutions are different. In particular, although they may all imply the establishment of supranational institutions, not all such institutions need be global. The creation of a full-blown global rule of criminal law, for instance, would raise serious concerns of global despotism and cultural imperialism, and we therefore make a case for regional and context-sensitive solutions in this case. However, problems of supranational socioeconomic justice can only be addressed through global regulatory institutions, for regional institutions would, in this case, only recreate current problems at the interregional level.

Type
Research Article
Information
Review of International Studies , Volume 37 , Issue 5 , December 2011 , pp. 2089 - 2106
Copyright
Copyright © British International Studies Association 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Holden, Barry (ed.), Global Democracy: Key Debates (London: Routledge, 2000), p. 202Google Scholar .

2 Vernon, Richard, ‘What Is a Crime against Humanity’, Journal of Political Philosophy, 10 (2002), pp. 231–249, 242CrossRefGoogle Scholar .

3 See, for instance, Werle, Gerhard, Völkerstrafrecht (Tübingen: Mohr Siebeck, 2007), pp. 39–40Google Scholar .

4 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 1998, preamble.

5 See Kai Ambos (with the assistance of Christian Steiner), ‘On the Rationale of Punishment at the National and International Level’, in Henzelin, Marc and Roth, Robert (eds), Le droit pénal à l'épreuve de l'internationalisation (Paris: Lgdj-Georgéd-Bruylant, 2002), pp. 305–323Google Scholar .

6 See, for instance, Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), pp. 106–120Google Scholar ; Freeman, Samuel, ‘The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice’, Social Philosophy and Policy, 23 (2006), pp. 29–68CrossRefGoogle Scholar .

7 Blake, Michael, ‘Distributive Justice, state Coercion, and Autonomy’, Philosophy and Public Affairs, 30 (2001), pp. 257–296CrossRefGoogle Scholar ; Nagel, Thomas, ‘The Problem of Global Justice’, Philosophy and Public Affairs, 33 (2005), pp. 113–147CrossRefGoogle Scholar . A notable exception is Laura Valentini, ‘Coercion and (Global) Justice’, American Political Science Review, 105 (2011), pp. 205–20.

8 Marion Young, Iris, ‘Responsibility and Global Justice: A Social Connection Model’, Social Philosophy and Policy, 23 (2006), pp. 102–130CrossRefGoogle Scholar .

9 Richard Murphy, John Christensen, et al., Tax us if you can, Tax Justice Network (2005), {http://www.taxjustice.net/cms/front_content.php?idcat=30}. For an in-depth discussion of tax competition and sovereignty, see also Peter Dietsch, ‘Tax Competition and its Effects on Domestic and Global Justice’, in Ayelet Banai, Miriam Ronzoni and Christian Schemmel (eds), Global and Social Justice: Theoretical and Empirical Perspectives (London: Routledge, 2011), pp. 95–113, and Peter Dietsch, ‘Rethinking sovereignty and international fiscal policy’. This symposium pp. 000–000.

10 Genschel, Philipp, ‘Globalization, Tax Competition, and the Welfare State’, in Politics & Society, 30 (2002), pp. 245–275CrossRefGoogle Scholar .

11 The ICC is not bound by this limitation if it opens a case referred by the Security Council. In this case, however, the ICC works as an ad hoc tribunal, and its jurisdiction is therefore nevertheless limited.

12 The exclusive referral to ‘major war criminals’ was explicitly stated in the Charter of the Tokyo and Nuremberg Tribunals (see the Charter of the Nuremberg International Military Tribunal, art. 1). The ICTY and the ICTR stuck to this limitation since the beginning of their activity; their practice was later explicitly set forth in their Annual Reports and ratified by Security Council Resolutions. See for instance Annual Report of ICTY, 2001, para. 286 and Annual Report of ICTY, 2002, para. 326, and UN Doc S/Res/1503 (2003).

13 Annual Report of ICTY (2000), summary. See also Mandel, Michael, How America gets Away with Murder. Illegal Wars, Collateral Damage and crimes Against Humanity (London: Pluto Press, 2004)Google Scholar ; and Zolo, Danilo, Invoking Humanity: War, Law and Global Order (London: Continuum, 2002)Google Scholar .

14 Report of the International Criminal Court, A/61/217 (3 August 2006), para. 31 and the letter from the Prosecutor of the 9 February 2006, p. 7, both available at the ICC website: {http://www.icc-cpi.int/} last accessed on 20 September 2011).

15 Bass, Gary Jonathan, Stay the Hand of Vengeance. The Politics of World Crime Tribunals (Princeton-Oxford: Princeton University Press, 2000), p. 300Google Scholar .

16 Updated to the 20 September 2011, {http://www.iccnow.org/}.

17 See the Statement of the Representative of China at the Sixth Committee of the 57th Session of the General Assembly (15 October 2002), {http://www.iccnow.org/documents/China6thComm15Oct02.pdf}; the Statement of the Representative of China at the Sixth Committee of the 58th Session of the General Assembly (20 October 2003), {http://www.iccnow.org/documents/China6thComm20Oct03.pdf}; and the Position Paper of the People's Republic of China on the UN Reforms (7 June 2005), {http://www.iccnow.org/documents/China_PositionPaperUNReforms_7Jun05.pdf}, all last accessed on 20 September 2011.

18 Ramanathan, Usha, ‘India and the ICC’, Journal of International Criminal Justice, 3 (2005), pp. 627–634CrossRefGoogle Scholar .

19 See the explanation of Algeria's vote on Security Council Resolution 1593, {http://www.iccnow.org/documents/Algeria.Statement.SCreferralDarfurICC_31March05.pdf} and the statement of Syria's representative at the 63rd Session of the UN General Assembly (27 September 2008), {http://www.iccnow.org/documents/syria_en.pdf}, both last accessed on 20 September 2011.

20 We would like to thank an anonymous reviewer for drawing our attention to these two points.

21 We regard this to be the case even for institutions like the WTO, which, unlike some institutions of the EU, do not give rise to an independent source of decision-making power.

22 On this specific issue, see Brandi, Clara, ‘The World Trade Organization as Subject of Socioeconomic Justice’, in Banai, Ayelet, Ronzoni, Miriam and Schemmel, Christian (eds), Global and Social Justice, pp. 186–199Google Scholar .

23 Kelsen, Hans, Peace through Law (Chapel Hill: University of North Carolina Press, 1944)Google Scholar ; Falk, Richard A., The Status of Law in International Society (Princeton: Princeton University Press, 1970)Google Scholar ; Held, David, Democracy and the Global Order (Cambridge: Polity Press, 1995)Google Scholar ; and Habermas, Jürgen, ‘Kants Idee des Ewigen Friedens – aus dem historischen Abstand von 200 Jahren’, in Kritische Justiz, 28 (1995), pp. 293–319CrossRefGoogle Scholar .

24 Perreau-Saussine, Amanda, ‘Immanuel Kant on International Law’, in Besson, Samantha and Tasioulas, John (eds), Philosophy of International Law (Oxford: Oxford University Press, 2009), pp. 53–78Google Scholar ; and Katrin Flikschuh, ‘Kant's Sovereignty Dilemma: A Contemporary Analysis’, The Journal of Political Philosophy, 18 (2010), pp. 469–93. Other scholars, however, such as Hedley Bull and Martin Wright, stress the cosmopolitan component of Kant's writings. For an overview of the debate see Hurrel, Andrew, ‘Kant and the Kantian Paradigm in International Relations’, Review of International Studies, 16 (1990), pp. 183–205CrossRefGoogle Scholar .

25 Kant, Immanuel, Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis (Frankfurt am Main: Klostermann, 1968)Google Scholar , Hrsg. von Joachim Hebbinghaus, pp. 60–8 and Zum ewigen Frieden (Leipzig: Reclam, 1984), pp. 19–23Google Scholar and 34–6.

26 See Zolo, D., ‘Theory and Critique of the Rule of Law’, in Costa, Pietro, Zolo, D. (eds), The Rule of Law. History, Theory, Criticism (Dordrecht: Springer, 2007), pp. 3–72CrossRefGoogle Scholar .

27 For a historical overview see Bull, Hedley and Watson, Adam (eds), The Expansion of International Society (Oxford: Clarendon, 1984)Google Scholar ; and Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar .

28 Huntington, Samuel, ‘The Clash of Civilizations?’, Foreign Affairs, 72 (1993), pp. 22–49CrossRefGoogle Scholar .

29 See Findlay, Mark, Henham, Ralph, Transforming International Criminal Justice. Retributive and Restorative Justice in the Trial Process (Collumpton: Willan, 2005), pp. 301–302Google Scholar .

30 Restorative justice is a response to crime that focuses on restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities, without necessarily holding the perpetrator criminally responsible.

31 Kelsen, H., Peace though Law, p. 12Google Scholar .

32 For an in-depth version of this argument, see Ronzoni, Miriam, ‘The Global Order: A case of Background Injustice? A Practice-Dependent Approach’, Philosophy and Public Affairs, 37 (2009), pp. 229–256CrossRefGoogle Scholar .

33 Rawls, J., Political Liberalism (New York: Columbia University Press, 1993), pp. 257–288Google Scholar .

34 Ibid., p. 266.

35 See, for instance, Meckled-Garcia, Saladin, ‘On the Very Idea of Cosmopolitan Justice: Constructivism and International Agency’, The Journal of Political Philosophy, 16 (2008), pp. 245–271CrossRefGoogle Scholar .

36 Still penal in character, but different from the international criminal law model, is the idea of universal jurisdiction, according to which domestic courts can punish international crimes, no link being necessary between the place where the crimes are committed, the perpetrators or the victims of the crimes and the state the courts punishing the crimes belong to. However, the universal jurisdiction principle is also committed to penal universalism and to the related indifference towards context-specific considerations, and is not consequently, in our opinion, an attractive alternative to international criminal law. Moreover, the universal jurisdiction principle, where adopted, has proven to be rather ineffective, and counterproductive for the judicial system of the states that adopted it. Among the few states which adopted the universal jurisdiction, the two pioneers (Belgium and Spain) have either abolished it or expressed their intention to do so in the near future.

37 In this it would thus be similar to the functioning of the ICC, which only intervenes in case states are unwilling or unable to proceed. However, it would differentiate itself from the latter, in that it would also contemplate non-criminal procedures as valid measures.

38 We are grateful to an anonymous reviewer for urging us to think on both these matters.

39 Indeed, the most cited case as one the first examples of tax competition is interregional. In 1984, the US unilaterally decided to abolish their withholding tax on foreign residents holding bank accounts in the US, causing Europe to follow suit shortly after. See Avi-Yonah, Reuven S., ‘Globalization, Tax Competition, and the Fiscal Crisis of the Welfare State’, Harvard Law Review, 113 (2000), pp. 1573–1676CrossRefGoogle Scholar . The idea that tax competition cannot be tackled at a regional level is also the point often raised by the UK in response to the proposals of other EU member states (most notably, Germany and France).